NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership v Commissioner of Taxation

[2016] FCAFC 87

FEDERAL COURT OF AUSTRALIA

NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership v Commissioner of Taxation [2016] FCAFC 87

Appeal from:

NR Allsopp Holdings Pty Ltd as General Partner of Q Uniform Partnership and Commission of Taxation (Taxation) [2015] AATA 654

File number:

QUD 895 of 2015

Judges:

LOGAN, GRIFFITHS AND PAGONE JJ

Date of judgment:

22 June 2016

Catchwords:

PARTNERSHIP – limited partnership – certificate of registration of limited partnership – whether certificate conclusive evidence of formation of limited partnership – whether necessary for partnership to exist before registration – general law partnership

TAXATION – dividends – franking credits – debt and equity interests – whether debt interest or equity interest – whether financial benefit provided under scheme – whether effectively non-contingent obligation under scheme to provide financial benefit

TAXATION – administrative penalty – whether position of taxpayer reasonably arguable – whether it would be concluded that what is argued for is about as likely as not correct

Date of hearing:

11 February 2016

Registry:

Queensland

Division:

General Division

National Practice Area:

Taxation

Category:

Catchwords

Number of paragraphs:

3

Counsel for the Appellants:

Mr K Wilson QC with Mr A Anderson

Counsel for the Respondent:

Ms K Mellifont QC with Mr M Ballans

Solicitor for the Appellants:

Cleary Hoare Solicitors

Solicitor for the Respondent:

Australian Government Solicitor

Table of Corrections

5 July 2016

On the cover page, the appearance for the respondent has been corrected.

ORDERS

QUD 895 of 2015

BETWEEN:

NR ALLSOPP HOLDINGS PTY LTD AS GENERAL PARTNER OF Q UNIFORM PARTNERSHIP

First Appellant

THE TRUSTEE FOR THE NKP SHEETMETAL TRUST

Second Appellant

THE TRUSTEE FOR THE UNIFORM GENERAL TRUST

Third Appellant

AND:

COMMISSIONER OF TAXATION

Respondent

JUDGES:	LOGAN, GRIFFITHS AND PAGONE JJ
DATE OF ORDER:	22 JUNE 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the respondent’s costs of the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1. I have also had the advantage of reading in draft the reasons for judgment of Pagone J in the Allsopp appeal.  I agree that while the facts differ in detail in this appeal from those of the D Marks proceeding, the issues do not.  Thus, for the reasons given by me in the D Marks appeal, I would allow the Allsopp appeal.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:  

Dated:        22 June 2016

REASONS FOR JUDGMENT

GRIFFITHS J:

1. I too have had the advantage of reading in draft the reasons for judgment of Pagone J in the Allsopp appeal.  I likewise agree that though the facts differ in detail from those in the D Marks proceeding, the issues do not.  Accordingly, for the reasons given by me in that appeal, I would dismiss the Allsopp appeal.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        22 June 2016

REASONS FOR JUDGMENT

PAGONE J:

1. This appeal (“the Allsopp appeal”) was heard with that in QUD896 of 2015 (“the D Marks appeal”) and raised the same issues.  The facts in the Allsopp appeal differed in their detail but did not raise different issues, and the parties agreed that the determination of the issues in the D Marks proceeding would also apply to the Allsopp appeal.  Accordingly, I would dismiss the Allsopp appeal for the same reasons as those given in the D Marks appeal.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate:

Dated:        22 June 2016